Wednesday, January 21, 2009

The parish of St. James has filed a petition for rehearing with the California Supreme Court in The Episcopal Church Cases, a decision it handed down on January 5, 2009, and which I discussed here. The petition concerns a curious remark included by the Court at the top of page 9 of its slip opinion, as follows:

B. Resolving the Dispute Over the Church Property

Both lower courts also decided the merits of the dispute over ownership of the local church — the trial court in favor of the local church and the Court of Appeal in favor of the general church.We will also decide this question, which the parties as well as various amici curiae have fully briefed.

(Emphasis added.) It is customary in courts of law to allow a defendant an opportunity to respond to the complaint before deciding the case "on the merits." (Indeed, that is what is meant by the phrase "due process of law", guaranteed to all litigants by both the federal and State Constitutions.)

There really can be no "merits" until both sides have had a chance to offer their evidence, and that has not yet occurred in The Episcopal Church Cases. The trial court dismissed the complaints filed both by the Diocese of Los Angeles (as being subject to a SLAPP motion) and by the Episcopal Church (USA), for failure to plead a sufficient claim for relief. The appellate court reversed those dismissals, thus reinstating the complaints, and the Supreme Court affirmed that reversal, although for different reasons. So now the case should go back to the Orange County Superior Court to allow the parish to file its answers to the complaints.

Then the Diocese and ECUSA will probably file motions for summary judgment, using the law as decided by the Supreme Court. There still may be factual issues, however, to resolve in applying that law. So the case is far from over yet.

The first step, nevertheless, is to get the Supreme Court to acknowledge that it did not "decide the case on the merits." (All it really did was establish some of the law that will govern the trial and decision of the case, as far as "neutral principles" are concerned.) It should be an elementary concession for them to make, but we shall see.

[UPDATE 01/28/2002: I have added a link to a downloadable copy of the petition above.]

2 comments:

I think part of the confusion is that part of the anti-SLAPP analysis is an analysis of the likelihood of the plaintiff's success on the merits. So, much like a request for an injunction, and anti-SLAPP motion to dismiss does require at least some discussion of the merits.

As one article on church property disputes says:

California allows challenges to alleged SLAPPs, and the lawsuit in question will be dismissed if (1) the court finds it is intended to stop or punish acts “in furtherance of the [defendant’s] right of petition or free speech . . . in connection with a public issue” and (2) the plaintiff is unlikely to prevail on the merits. CAL. CIV. PROC. CODE § 425.16(b)(1).

Now, that's not to say that the parties have had a full opportunity to present evidence, etc., etc., and that's definitely going to be an issue on remand. But that's my guess as to why the Court of Appeals and the Supreme Court felt they were able to address the merits.

Jeff H, you may be going a little overboard in your charity for whichever law clerk or Justice is responsible for the language that I have quoted. I agree that they have to evaluate the merits in connection with the SLAPP issues, but this was language that appeared at the outset of their discussion of the property dispute, after they had finished disposing of the SLAPP question.

Moreover, there is a distinction---which you instinctively draw---between "discussing" the merits, and "deciding" the merits; their language says they are purporting to do the latter.

Anyway, I appreciate your perspective from the point of view of one on the inside. We will see in their response to the petition how they choose to explain their language, if they even deign to do so.

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